Not all Public Meetings of Public Governing Bodies Must be Held in Public

The Pennsylvania Sunshine Act, 65 Pa.C.S. § 701 et seq. is generally cited for the proposition that the majority or a quorum of the elected officials on a governing body may not meet outside of an advertised public meeting.  The Sunshine Act isn’t quite that broad.

First, at Section 708(a), the law gives a list of six reasons or categories under which an agency may hold an executive session, being a session not open to the public.  The categories include matters involving employment, appointment, termination of employment, terms and conditions of employment, evaluation, etc.; information strategy and negotiation sessions with regard to collective bargaining or labor relations or arbitration; meetings to consider the purchase or lease of real estate until an option to purchase or lease the real estate is obtained; meetings with attorneys or other professional advisors with regard to litigation or issues on which identifiable complaints are expected to be filed; meetings to review and discuss business which, if held in public, would violate a lawful privilege or the disclosure of information or confidentiality protected by law; and a final exception dealing with state owned, aided or related universities or community colleges meeting about academic admissions or standings.

In addition to the exceptions, a “meeting,” to be covered by the Act, has to fit within the definition of a meeting in order to require public notice and participation.  Meeting, as defined in the Sunshine Act, is “Any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action.”  When a quorum of an agency or governing body meets but does not intend to and, in fact, does not deliberate agency business or take official action, there is no meeting as defined by the Sunshine Act.

In the recent case of Smith v. Township of Richmond (decision filed October 5, 2012), the Pennsylvania Commonwealth Court was faced with an appeal of a settlement of a litigation matter by the Board of Supervisors of a Township by a resident who happened to be an attorney and who asserted a violation of the Sunshine Act.

The Township was in litigation with a local cement company and a citizens group.  When members joined the Board and a new solicitor was hired, the Board held a series of four educational meetings which it called executive sessions.  The meetings were held to gather information from surrounding communities in which the cement company had operations and with representatives of each of the parties.  The Township, and all participants of the meeting, asserted that the Supervisors did not deliberate on or conduct or make any decisions at the meeting but, rather, the sole purpose of the meetings was to gather information.

Subsequently, a written settlement offer, drafted by the cement company, was presented to the Board Solicitor shortly before a public meeting.  The settlement agreement was read into the record at the public meeting, debated at the meeting and adopted by the Board.  A Township resident then raised the question as to whether or not the “executive sessions” held by the Township to gather information but not for deliberation, required a finding of a violation of the Sunshine Act and would overturn the adopted settlement.

The trial court granted summary judgment for the Township.  The question on appeal was whether the trial court erred or abused its discretion in entering judgment in favor of the Township and its Supervisors.  Appellant argued that closed meetings violated the Sunshine Act, thereby nullifying the Township’s settlement.

The Court determined that the four private meetings for informational gathering purposes were not “meetings” as defined in the Sunshine Act.  It was undisputed that the meetings were prearranged and attended by a quorum of the governing body.  The question, then, is whether the meetings were held for the purposes of deliberating agency business or taking official action.  It is also uncontested that no official action was taken, that is a vote did not take place at any of the four meetings.  Appellant contented that “deliberations” took place which assertion the Township denied.  Commonwealth Court Judge Mary Hannah Leavitt, writing on behalf of the Court, decided:

“A narrow and literal reading of “deliberation,” i.e., discussion of agency of business, would proscribe public officials from collaborative fact finding.  However, this Court has never read “deliberations” so strictly.  Fact-finding does not have to take place in the presence of the public (citations omitted).  It has been established that public officials have a duty to be fully informed (citations omitted).  In short, public officials may “study, investigate, discuss and argue problems and issues” outside the confines of public meetings, even with interested parties. . .”

The Appellant argued that the purpose of the private meetings was to make decisions but that arguement had no support in the record.

“The testimony of all who participated show that the Supervisors were collecting information to allow them to make an informed decision at some later time.  They sought this information in case the opportunity to settle the case might develop in the future.”

In fact, the Court held that, while the meetings were described as executive sessions, in actuality they were not.  The sessions were not meetings, as defined in the Sunshine Act, held outside the public but allowed under the exceptions to the public meeting law quoted earlier in this article.  In fact, the meetings were not for purposes of action or deliberation and no action or deliberation occurred at the meetings.

“The law does not require the press and public to be present at every agency meeting.  The case law has drawn a line, however, around the meetings of public officials where a specific proposal or petition is discussed.  Meetings at which such specific proposals or petitions are discussed may require the presence of the public.  Here, there was no proposal available for discussion at any of the four meetings.”

The finding of the Court is, then, that the Sunshine Act does not apply when an agency or governing body which is covered by the Sunshine Act meets not to deliberate or act on business but for purposes of general information fact finding which occurs when the agency does not have a specific proposal before it.  Such a meeting is not an executive session but, rather, is a non-deliberative informational session closed to the public.  A public body may also meeting privately when it meets with its solicitor in a privileged situation (that is when no party other than client or the attorney are present) and when the meeting is for the purpose of communicating legal advise between the attorney and the board.